United States v. Rivera Maldonado

• Court: Court of Appeals for the First Circuit
• Decided: October 20, 1999
• Docket: 98-1742A
• Status: Published

Opinion

USCA1 Opinion

                    UNITED STATES COURT OF APPEALS

                         FOR THE FIRST CIRCUIT


No. 98-1742



                       UNITED STATES OF AMERICA,



                               Appellee,



                                  v.



                       IVETTE RIVERA-MALDONADO,



                         Defendant, Appellant.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                    FOR THE DISTRICT OF PUERTO RICO



            [Hon. Hector M. Laffitte, U.S. District Judge]


Before



                        Torruella, Chief Judge,



                Coffin and Cyr, Senior Circuit Judges.


Lydia Lizarribar-Masini for appellant.

     Warren V zquez, Assistant United States Attorney, with whom

Guillermo Gil, United States Attorney, and Nelson P‚rez-Sosa, Assistant

United States Attorney, were on brief for appellee.


October 19, 1999

                                                       CYR, Senior Circuit Judge.  Ivette Rivera-Maldonado

appeals the life sentence imposed upon her for conspiring to

distribute cocaine and marijuana, and aiding and abetting the use

of minors in distributing controlled substances, in violation of 21

U.S.C.  841(a)(1).  We remand for resentencing.

                               I

                           BACKGROUND

          During a five and one-half month period in early 1995, an

investigation into suspected drug distribution was conducted within

the Los Laureles Housing Project ("project") in Bayamon, Puerto

Rico, by the Special Investigations Bureau of the Puerto Rico

Department of Justice and the United States Drug Enforcement Agency

("DEA").  Various investigators thereafter testified at trial that

Maldonado had supervised a drug-distribution ring operated from her

apartment in the project.  Although she was never observed selling

drugs, the evidence established that she used others, including

minors, to sell crack and powder cocaine as well as marijuana.

          The government introduced 26 surveillance videotapes

depicting various drug distribution activities.  Agent Cesar

Martinez, who had observed numerous transactions, estimated that

from 20 to 25 drug sales occurred per hour.  Agent Victor Manuel

Ayala-Rivera testified as an expert witness that in his experience

drug distribution operations in the project normally operated three

shifts daily.  On that basis he opined that the Maldonado

organization would have distributed more than 24 kilograms of

controlled substances during the five and one-half month period

spanned by the DEA investigation.

          At sentencing, after determining that Maldonado should be

held responsible for distributing controlled substances totaling 24

kilograms, the district court set the base offense level ("BOL") at

38.  It then imposed a four-level role-in-the-offense enhancement

and a two-level enhancement for employing minors, which resulted in

the maximum adjusted base offense level of 43 and triggered the

mandatory life-imprisonment sentence now challenged on appeal.  See

U.S.S.G. Sentencing Table, comment 2.

                               II

                           DISCUSSION

A.   The Drug-Quantity Calculations

          Under U.S.S.G.  2D1.1(c), the BOL depends in large part

upon the total drug quantities involved in the offense.  Insofar as

the quantities seized underrepresent the demonstrated scale of a

drug-distribution conspiracy, however, the sentencing court is to

"approximate the [total] quantit[ies]."  U.S.S.G.  2D1.1, comment.

(n.12).  The government must establish these drug quantities by a

preponderance of the evidence.  United States v. Whiting, 28 F.3d

1296, 1304 (1st Cir. 1994).  Since Maldonado stands convicted of

conspiring to distribute controlled substances, she is responsible

for all "drugs [she] personally handled or anticipated handling,

and, under the relevant conduct rubric, for drugs involved in

additional acts that were reasonably foreseeable by [her] and were

committed in furtherance of the conspiracy."  United States v.

Sepulveda, 15 F.3d 1161, 1197 (1st Cir. 1993).

          Maldonado first contends that the ultimate drug-quantity

finding made by the district court must be set aside because it is

based on speculative estimates derived from unreliable evidence and

improper extrapolations.  Since the instant offenses involved

various controlled substances, the sentencing court was required to

"determine both the amount and the kind of 'controlled substances'

for which [the] defendant should be held accountable   and . . .

impose a sentence that varie[d] depending upon amount and kind." 

Edwards v. United States, 118 S. Ct. 1475, 1477 (1998).  A

reasonably reliable differentiation among the various types of

controlled substances is particularly important in these cases,

since much more severe sentencing ranges are prescribed in crack-

cocaine distribution offenses for which the applicable offense

levels, see U.S.S.G.  2D1.1(c)(8)-(14), may increase with each

additional gram.  See Sepulveda, 15 F.3d at 1198.

          Although the sentencing court may rely on reasonable

estimates and averages in arriving at its drug-quantity

determinations, their probable accuracy must be founded on adequate

indicia of reliability, United States v. Webster, 54 F.3d 1, 5 (1st

Cir. 1995), and demonstrable record support, see, e.g., United

States v. Marrero-Ortiz, 160 F.3d 768, 780 (1st Cir. 1998)

("[Absent] particularized findings to support the assigned BOL, we

have no principled choice but to vacate the sentence and remand for

further findings and resentencing."); United States v. Welch, 15

F.3d 1202, 1215 (1st Cir. 1993);  Sepulveda, 15 F.3d at 1198.  Nor

may a criminal sentence be predicated simply upon conclusory

prosecutorial assessments that the extensiveness of the conspiracy

suggested a "substantial amount of narcotics business."  See

Marrero-Ortiz, 160 F.3d at 779-80 ("[W]e cannot uphold a drug

quantity calculation on the basis of hunch or intuition.");  United

States v. Miele, 989 F.2d 659, 668 (3d Cir. 1993) ("[A]

determination that [the] drug activity was substantial does not

translate readily into a specific drug quantity finding, which is

the ultimate issue for sentencing purposes.").

     1.   The Drug-Quantity Calculation

          The district court purportedly arrived at its BOL 38

determination by adopting the drug-quantity calculations set out in

Maldonado's objections to the Presentence Report ("PSR").  The

record plainly reflects, however, that in so doing the district

court utilized incorrect metric conversions.  See supra note 4. 

That is, as a unit of mass/weight, one gram equals 1,000

milligrams, rather than one milligram, see U.S.S.G.  2D1.1,

comment. (n.10) (Measurement Conversion Table), and one kilogram

equals 1,000,000 milligrams, not 100,000 milligrams, id. 

Accordingly, based on the proper metric conversions the BOL should

have been 24 rather than 38.

          Although the district court stated that its BOL 38

determination was supported by the testimony of DEA Agent Rivera,

we can discern no record support for its assertion.  Instead, Agent

Rivera testified that a drug point at the Los Laureles project

would "average . . . between 150 and 180 grams" of controlled

substances per day, the bulk of which would be cocaine.  Moreover,

shortly thereafter the district court asserted that it was relying

on Maldonado's objections to the PSR in setting the BOL.  See supra

note 4.  Finally, although the PSR opined that "[t]he investigation

established" that Maldonado's drug trafficking organization "had

the capability to distribute more than five (5) kilograms of

cocaine base (crack)," and that "the amounts of narcotics

distributed during the period of the conspiracy was [sic]

approximately 24 kilograms[,]" the PSR neither breaks down the 24

kilograms by drug type, nor indicates how it was calculated.

     2.   The Drug-Quantity Evidence at Trial

          At trial, after viewing the drug transactions depicted on

a two-hour composite videotape, Agent Martinez estimated that

approximately 20 to 25 transactions occurred hourly at the

Maldonado drug point.  Agent Martinez acknowledged, however, that

this composite videotape formed the sole foundation for his drug-

quantity estimate because it disclosed a lot of drug activity.  Nor

was Agent Martinez able to identify which individual surveillance

videos   among the 26 admitted at trial   comprised the foundation

for the composite videotape upon which the drug-quantity estimate

was based.  Finally, he acknowledged that he had never estimated

the number of drug transactions which would have occurred during a

slow period.

           The record on appeal contains no other discernible

documentary or testimonial evidence upon which to predicate a

reasonably reliable determination that the two-hour period captured

on the composite videotape utilized at trial by Agent Martinez was

reasonably representative, either as to the volume or the variety

of drug sales at the Maldonado drug point during the six-month

indictment period.  Nor did the district court articulate detailed

findings which would enable us to determine whether its drug-

quantity determinations were reasonably reliable notwithstanding

its erroneous metric conversions.  See supra Section II.A.1.  For

instance, it neither mentioned Agent Martinez nor his trial

testimony, even though 26 surveillance videos were admitted in

evidence through Agent Martinez as he described what each depicted.

          Moreover, for the most part Martinez simply stated that

the videotaped transactions involved "controlled substances,"

without identifying the drug type.  The surveillance videos

themselves depicted three controlled marijuana sales and one powder

cocaine sale to informants, without any indication of the

respective drug quantities involved in those transactions.  In

addition, Agent Martinez testified that he had witnessed two

marijuana sales, without mentioning any other relevant particulars. 

Finally, he estimated the aggregate daily drug volume at "about

150, 180 grams," without apportioning it among the three controlled

substances sold at the Maldonado drug point.

          Nor do the respective drug-type quantities involved in

the twelve controlled buys   marijuana (3) (9.9 grams); crack

cocaine (4) (3.8 grams); powder cocaine (5) (3.05 grams)   afford

sufficient support for apportioning the aggregate drug-quantity

estimate among the three illegal drugs sold at the Maldonado drug

point.  The Second Circuit recently exposed the flawed assumptions

implicit in similar extrapolations:

                                        [A] forensic chemist had selected at random

                    four of the 103 balloons passed by Shonubi

                    after his arrest, determined the average

                    weight of the heroin contained in these four

                    balloons, and then multiplied that average

                    weight by 103 to conclude that the weight of

                    the heroin contained in all 103 balloons was

                    427.4 grams.  This approach rested on the

                    assumption that the four balloons selected

                    were representative of the entire 103

                    balloons, an assumption that, in turn, rested

                    on subsidiary assumptions that each of the 103

                    balloons contained heroin, that the average

                    quantity of heroin in each of the four

                    balloons selected was the same as the average

                    quantity in all of the 103 balloons, and that

                    the average purity of the heroin in the four

                    balloons selected was the same as the purity

                    of the heroin in all of the 103 balloons

                    because all the heroin came from the same

                    batch of heroin.



United States v. Shonubi, 103 F.3d 1085, 1092 (2d Cir. 1997).

          Generally speaking, the smaller the sampling, the less

reliable the resulting probability estimate.  See David H. Kaye &

David A. Freedman, Reference Guide On Statistics, in Reference

Manual on Scientific Evidence 351, 378-82 (Federal Judicial Center,

1994).  The present sampling Ä i.e., twelve controlled buys drawn

from a set of 86,400 transactions (20 transactions per hour, times

24 hours per day, times 180 days) Ä is minuscule.  The core risk

entailed in relying on such tiny samplings is that "the smaller the

sample size, the greater the likelihood that the [evidence]

reflects chance."  See Stendebach v. CPC Int'l, Inc., 691 F.2d 735,

738 (5th Cir. 1982) (citation omitted); see also International Bhd.

of Teamsters v. United States, 431 U.S. 324, 340 (1977)

("Considerations such as small sample size may, of course, detract

from the value of such evidence."); Parker v. Federal Nat'l

Mortgage Ass'n, 741 F.2d 975, 980 (7th Cir. 1984) (finding that

small sample size causes "[a] small change in the underlying raw

data . . . [to] result in dramatic statistical fluctuations").  In

other contexts courts have counseled against, or rejected,

similarly small samplings.  See, e.g., Mayor of Philadelphia v.

Educational Equal. League, 415 U.S. 605, 621 (1974) (noting that

trial court's concern over sample size of 13 was "well founded");

LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 849 (1st Cir. 1993)

(observing that sample size of 5 "carries little or no probative

force"); Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 511 (4th

Cir. 1994) (holding that sample size of 4 has no probative value);

Shutt v. Sandoz Crop Protection Corp., 944 F.2d 1431, 1433-34 (9th

Cir. 1991) (holding that group of 11 was too small); Lucas v. Dover

Corp., 857 F.2d 1397, 1403 (10th Cir. 1988) (warning that sample

size of 18 "must be evaluated with caution"); Simpson v.

Midland-Ross Corp., 823 F.2d 937, 943 (6th Cir. 1987) (considering

sample size of 17 "suspect"); Palmer v. United States, 794 F.2d

534, 539 (9th Cir. 1986) (finding "sample size [of 15] too small to

have predictive value").

          Furthermore, the inferential leap in the instant case is

founded on the bare assumption Ä unsubstantiated, if not directly

undermined, by record testimony, see, e.g., supra note 7 Ä that the

quantities involved in the crack cocaine sales made to Maldonado's

customers closely resembled those in the controlled buys arranged

by government agents.  Although we do not suggest that the

respective drug-type quantities indicated in these controlled buys

must be disregarded merely because they were controlled by the

government, we do say that the necessary factual inference   that

these controlled buys were reasonably representative of the

uncontrolled drug transactions at the Maldonado drug point   should

find discernible record support.  See Whiting, 28 F.3d at 1304.

          As the burden is on the government to establish drug

quantities, see United States v. Barnett, 989 F.2d 546, 553 (1st

Cir. 1993), normally "[w]e must determine whether [it] presented

sufficient reliable information to permit the court reasonably to

conclude that appellants were responsible for a quantity of drugs

at least equal to the quantity threshold for the assigned base

offense level."  Id.  In the instant case, however, the record on

appeal neither enables us to uphold the drug-type apportionment

methodology articulated by the district court, nor to discern one

which would.

          For example, the trial testimony given by Agent Ayala was

equivocal as concerns any quantitative apportionment among the

three controlled substances dispensed at the Maldonado drug point. 

Ayala testified that in places like the Los Laureles Housing

Project, a drug point "works like around three shifts, you know. 

Depending on the area its going to be four shifts, two shifts, but

this one works almost to midnight . . . . [T]he average sold there

is between 150 and 180 grams or a little bit more . . . [a]nd the

gross amount sold here in this place is cocaine.  Marijuana is sold

there.  Crack is sold there and cocaine, but--crack is cocaine." 

Moreover, Ayala's approximations regarding the number of shifts and

the quantities sold daily were not based on observations of the

Maldonado drug point.  More importantly, Ayala cast no light upon

the respective drug quantities   crack cocaine, powder cocaine, or

marijuana   included in the 150-to-180-gram daily sales volume

estimate.

          The potential for grave error where one conclusory

estimate serves as the multiplier for another, (i.e., average drug

quantity per transaction multiplied by average number of

transactions per hour and average operating hours per day) may

undermine the reasonable reliability essential to a fair sentencing

system.  See Sepulveda, 15 F.3d at 1198 ("[T]he two flawed findings

feed on each other; by using not one, but two, unsupported averages

to arrive at both the number of trips undertaken and the amounts of

cocaine handled in the course of each trip, the court compounded

the error of its ways.").  In the instant case the risk of error

was compounded by pyramiding unreliable inferences: the drug-

quantity estimate per sale was based on eleven controlled buys

throughout the entire six-month investigation; the number of

transactions per day on an unquantified number of observations; and

the average number of shifts per day without any 24-hour-day

observation of the drug point.

          Most importantly, particularly in cases like the present

where "drug quantity has a dramatic leveraging effect," Sepulveda,

15 F.3d at 1198, special care must be taken to ensure that

particularized drug-type quantity findings are predicated on

reliable information and, where significant uncertainty exists,

that those findings err on the side of caution, see United States

v. Eke, 117 F.3d 19, 24 (1st Cir. 1997); United States v. Sklar,

920 F.2d 107, 113 (1st Cir. 1990).  Yet there is no discernible

quantitative breakdown among the three controlled substances

dispensed at the Maldonado drug point, though crack cocaine

directly impacts the BOL determination far more dramatically than

do much larger amounts of powder cocaine or marijuana.

          Absent adequately particularized findings or discernible

record support for the BOL 38 assigned by the district court, see

Webster, 54 F.3d at 5, and given the mistaken metric conversions

assertedly relied upon by the district court, the sentence must be

vacated and the case remanded for resentencing.  See, e.g.,

Marrero-Ortiz, 160 F.3d at 780 ("[Without] particularized findings

to support the assigned BOL, we have no principled choice but to

vacate the sentence and remand for further findings and

resentencing."); see also Sepulveda, 15 F.3d at 1198; United States

v. Butler, 41 F.3d 1435, 1447-48 (11th Cir. 1995) (remanding

because sentencing court failed to articulate "a reliable method of

quantifying the amount of drugs attributable to each appellant");

United States v. Carreon, 11 F.3d 1225, 1231 (5th Cir. 1994)

(remanding for findings where appellate court is "left to second-

guess the basis for the district court's calculation"); United

States v. Shonubi, 998 F.2d 84, 89-90 (2d Cir. 1993) (vacating, in

the absence of other evidentiary support, a drug-quantity finding

arrived at by rote multiplication of number of trips times quantity

carried on one trip); United States v. Garcia, 994 F.2d 1499, 1509

(10th Cir. 1993) (vacating sentence and holding that averages

utilized to arrive at drug-quantity findings must be "more than a

guess"); United States v. Hewitt, 942 F.2d 1270, 1274 (8th Cir.

1991) (condemning use of "far reaching" averaging assumptions in

estimating drug quantity).  On remand, the district court is free

to consider such additional evidence as it deems appropriate.

B.   The Role-in-Offense Enhancement



          The four-level role-in-offense enhancement is authorized

under U.S.S.G.  3B1.1(a) for a defendant who acted as an organizer

or leader of a criminal activity involving five or more

participants who were "'criminally responsible for the commission

of the offense.'"  United States v. Preakos, 907 F.2d 7, 10 (1st

Cir. 1990) (quoting U.S.S.G.  3B1.1, comment. (n.1)).  Moreover,

"barring a mistake of law[,] . . . 'battles over a defendant's

status . . . will almost always be won or lost in the district

court.'"  United States v. Conley, 156 F.3d 78, 85 (1st Cir. 1998)

(quoting United States v. Graciani, 61 F.3d 70, 75 (1st Cir.

1995)). See United States v. Rodriguez, 63 F.3d 1159, 1168 (1st

Cir. 1995) ("The district court's finding, made with the benefit of

all of its observations at trial, is entitled to, and is given

here, considerable deference.").

          The evidence before the district court plainly

demonstrated that there were eight criminally responsible

participants in addition to Maldonado.  Furthermore, the contention

that minors should not be considered "participants" under U.S.S.G.

 3B1.1 is utterly without merit.  See, e.g., United States v.

Cruz, 120 F.3d 1, 4 (1st Cir. 1997) (defendant's "14-year-old

paramour" qualified as "participant" under  3B1.1(a)), cert.

denied, 118 S. Ct. 729 (1998); United States v. Clay, 117 F.3d 317,

321 (6th Cir.), cert. denied, 118 S Ct. 395 (1997).  Accordingly,

the four-level enhancement imposed under U.S.S.G.  3B1.1(a) was

proper.

C.   The Enhancement for Utilizing Minors



          Next, Maldonado contends that the district court engaged

in impermissible "double counting" by invoking section 2D1.2(a)(1),

since the minors involved in the conspiracy already had been

counted under section 3B1.1(a), that is, among the five

participants supervised by Maldonado.  Section 2D1.2 prescribes

a two-level enhancement in "the offense level . . . applicable to

the quantity of controlled substances directly involving[, inter

alia,] . . . an underage . . . individual."  U.S.S.G.  2D1.2(a)(1)

(emphasis added).

           Absent controlling authority we look to the analogous

case law on "double counting," which holds that Sentencing

Guidelines enhancement provisions apply cumulatively.  In United

States v. Kneeland, 148 F.3d 6, 16-17 (1st Cir. 1998), we held that

a section 3B1.1(a) role-in-offense enhancement, combined with an

enhancement for more than minimal planning under section

2F1.1(b)(2), did not constitute impermissible "double counting,"

even though the defendant's involvement as an organizer and planner

formed the basis for both enhancements.  We noted that the

commentary on role-in-offense enhancements expressly endorses

"double counting" under U.S.S.G.  3B1.1 and other guideline

sections.  Id.  Similarly, in Clay, 117 F.3d at 320-21, the Sixth

Circuit affirmed cumulative enhancements under sections 2D1.2(a)(1)

and 3B1.1(c) (two-level enhancement requiring two or more

participants), despite the fact that the same "juvenile" was

considered under both provisions.

          Similarly, sentencing guidelines policy supports

cumulative applications under sections 2D1.2(a)(1) and 3B1.1(a): 

"The offense level adjustments from more than one specific offense

characteristic within an offense guideline are cumulative (added

together) . . . .  Absent an instruction to the contrary, the

adjustments from different guideline sections are applied

cumulatively (added together)."  U.S.S.G.  1B1.1, comment. (n.4)

(emphasis added).  Finally, nothing in their text or commentary

suggests that either section 2D1.1(a)(1) or section 3B1.1(a) may

not be applied cumulatively.  Nor does Maldonado cite authority to

the contrary.

          Since Maldonado organized the drug distribution scheme

and utilized minors in furthering it, the cumulative application of

sections 2D1.1(a)(1) and 3B1.1(a) by the district court fairly

reflected both the seriousness of her offense and the likelihood of

recidivism.  See United States v. Ortiz, 64 F.3d 18, 21 (1st Cir.

1995).

D.   Denial of Downward Departure



          In determining whether an aggravating or mitigating

circumstance permits a departure under U.S.S.G.  5K2.0, sentencing

courts must ascertain "[w]hat features of th[e] case, potentially,

take it outside the Guidelines' 'heartland' and make of it a

special, or unusual, case[.]"  Koon v. United States, 518 U.S. 81,

95 (1996) (quoting United States v. Rivera, 994 F.2d 942, 949 (1st

Cir. 1993) (Breyer, C.J.)).  Thus, in the present case the district

court was required to determine whether the Sentencing Commission

adequately considered the impact the sentencing guidelines would

have on a criminal defendant who is HIV positive and whose

dependent child has AIDS.

          The district court appropriately recognized that it

lacked the authority to depart downward, given the record evidence

that Maldonado's medical and physical condition did not enable a

finding that she had an "extraordinary physical impairment."

U.S.S.G.  5H1.4.  First, although Maldonado was HIV positive, she

did not have advanced AIDS.  See United States v. Thomas, 49 F.3d

253, 261 (6th Cir. 1995) ("Thomas would only be entitled to a

departure if his HIV had progressed into advanced AIDS, and then

only if his health was such that it could be termed an

'extraordinary physical impairment.'").  Second, like the

defendant in Thomas, id., Maldonado remains in relatively good

physical condition.  As the district court observed at sentencing,

the Bureau of Prisons determined that Maldonado had no difficulty

with either her emotional or physical health.  Moreover, the court

noted that Maldonado appeared to be in "much better physical

condition . . . than she was . . . about four, six months ago when

she was [originally] sentenced."

          A "[p]hysical condition . . . is not ordinarily relevant

in determining whether a sentence should be outside the applicable 

guideline range."  U.S.S.G.  5H1.4.  Nor, to our knowledge, has

asymptomatic AIDS been considered a sufficient basis for a downward

departure under section 5H1.4.  See United States v. Woody, 55 F.3d

1257, 1275-76 (7th Cir. 1995); Thomas, 49 F.3d at 261.

          Further, Maldonado contends that she should have been

granted a downward departure because her dependent son has AIDS and

requires her care.  The district court correctly observed that it

has the "power to depart in 'unusual cases' and where family

circumstances are out of the 'ordinary,'"  United States v. Rivera,

994 F.2d 942, 953 (1st Cir. 1993), such as the need to care for sick

children, see id. at 952-53 (noting that defendant was the only

caregiver for three small children); see also United States v.

Gaskill, 991 F.2d 82, 85-86 (3d Cir. 1993) (observing that

defendant's responsibilities for mentally ill wife might warrant

departure); United States v. Johnson, 964 F.2d 124, 128-30 (2d Cir.

1992) (remarking that defendant had sole responsibility for raising

four children); United States v. Alba, 933 F.2d 1117, 1122 (2d Cir.

1991) (noting that defendant was raising two children, and caring

for live-in handicapped father and grandmother); United States v.

Pena, 930 F.2d 1486, 1494-95 (10th Cir. 1991) (considering that

defendant was single parent of infant and sole supporter of

sixteen-year-old daughter and daughter's infant).  Nevertheless, as

with other grounds for departure, sentencing courts may depart on

the basis of family hardship only in exceptional cases.  See

U.S.S.G.  5H1.6 ("Family ties and responsibilities and community

ties are not ordinarily relevant in determining whether a sentence

should be outside the applicable guideline range.").  Thus,

"[d]isruption of the defendant's life, and the concomitant

difficulties for those who depend on the defendant, are inherent in

the punishment of incarceration."  Johnson, 964 F.2d at 128.  In

any event, since the district court fully recognized its authority

to depart, but chose not to do so in these circumstances, we lack

appellate jurisdiction over the present claim.  See Rivera, 994

F.2d at 953.

E.   Alleged Sentencing Disparities

          Maldonado claims that a downward departure was warranted

due to the "extreme disparity" between her sentence and those meted

out to codefendants.  The district court determined instead that

Maldonado and her codefendants   who were sentenced to 120 months

  were not "similarly situated," in that Maldonado was both the

organizer and leader of the drug operation, whereas the

codefendants performed distinctly subordinate roles.  We must

accord the district court finding "considerable deference."  See

Rodriguez, 63 F.3d at 1168.

          Since Maldonado was far more culpable than her

codefendants, see, e.g., United States v. Trinidad de la Rosa, 916

F.2d 27, 30-31 (1st Cir. 1990) (holding that disparate sentences

were warranted, due in part to the levels of active involvement of

various defendants); see also United States v. Carr, 932 F.2d 67,

73 (1st Cir. 1991); United States v. Goddard, 929 F.2d 546, 550

(10th Cir. 1991), we must reject her claim.

F.   Admission of Composite Videotapes

     

          Finally, at trial, over Maldonado's objection, the

district court admitted composite videotapes and permitted Agent

Fonseca to testify to the events depicted.  Although he had not

observed the drug transactions, Fonseca testified to having

reviewed each crime-scene videotape with Agent Martinez, who had

videotaped the crime scenes.  Later, Fonseca prepared the composite

videos summarizing the daily videos previously admitted in

evidence.  See United States v. Sawyer, 85 F.3d 713, 740 (1st Cir.

1996).  Agent Martinez in turn testified that each daily video

accurately reflected what he had observed as it was being taped. 

Finally, Maldonado was afforded an opportunity to challenge Agent

Fonseca's testimony on cross-examination and place the composite

videotapes in their proper context.  Cf. United States v. Nivica,

887 F.2d 1110, 1125 (1st Cir. 1989) (noting that defendant's

assertion that summaries failed to reflect "total financial

activity" "affect[s] the weight rather than the admissibility of

the government's summaries").  There was no abuse of discretion.

                              III

                           CONCLUSION

          For the foregoing reasons, we affirm the judgment of

conviction, vacate the life imprisonment sentence, and remand to

the district court for resentencing consistent with this opinion.

          SO ORDERED.